This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2007AP2682-CR

Cir. Ct.
No.2006CF5833

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Joshua James Scolman,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for MilwaukeeCounty:jeffrey
a. wagner, Judge.Affirmed in
part; reversed in part and cause remanded.

Before Higginbotham, P.J., Dykman and Bridge, JJ.

¶1PER CURIAM. Joshua James Scolman appeals from
judgments convicting him of numerous offenses arising out of a fatal drunk
driving accident and his subsequent threats and firing of a gun.He also appeals from an order denying his
postconviction motion to withdraw his no contest pleas or for sentence
modification.Scolman argues that he
established a manifest injustice justifying plea withdrawal because he did not
understand important legal principles relating to the plea agreement, and he
faults his trial attorney and the trial court for failing to explain the
law.He also argues that the prosecutor
violated the plea agreement and that the facts do not support the consecutive
sentences imposed.We conclude that
Scolman’s motion presented sufficient facts to justify a hearing on his alleged
misunderstanding of the law and his claim of ineffective assistance of counsel.Therefore, we reverse on those issues and
remand the matter for further proceedings.We affirm as to the remaining issues.[1]

BACKGROUND

¶2The complaint alleges that Scolman was driving with a blood
alcohol concentration (BAC) of .242 when he sped through a red light and
collided with an automobile, causing the death of three people and traumatic
brain injuries to a fourth person.After
the collision, Scolman exited his vehicle and began yelling at an innocent
motorist, Donte Sims, about the damage to his car.Scolman pointed a gun at Sims’s head and
threatened to shoot. He ignored Sims’
suggestion that they should help the accident victims. Scolman then chased Sims and fired four or
five shots.Sims escaped unharmed.Scolman later resisted officers who were
trying to search him for weapons.

¶3The State charged Scolman with two offenses for each of the
persons he killed or injured.The
information charged both death or injury by intoxicated use of a vehicle and
causing death or injury while operating a vehicle with a prohibited BAC. Under Wis.
Stat. § 940.09(1m) (2005-06),[2]
Scolman could be convicted of only one offense for each person he killed or
injured.Pursuant to a plea agreement,
the State dropped three counts of homicide and one count of injury by driving
with prohibited BAC, and Scolman pled no contest to three counts of homicide
and one count of injury by intoxicated use of a vehicle, as well as endangering
safety with a dangerous weapon, disorderly conduct and resisting or obstructing
an officer.

¶4In his postconviction motion,[3]
Scolman alleged that he did not know the four counts had to be dismissed under Wis. Stat. § 940.09(1m).He thought the plea agreement benefitted him
by dismissing the four BAC charges when, in reality, the dropped charges did
not affect his sentencing exposure.He
alleged that he would not have entered the no contest pleas if he had known about
§ 940.09(1m).

DISCUSSION

¶5Scolman is entitled to an evidentiary hearing on his motion
to withdraw the no contest pleas.He
alleged sufficient facts that, if true, demonstrate he did not understand the
law as it relates to his plea agreement.SeeState v. Bentley, 201 Wis.
2d 303, 310, 548 N.W.2d 50 (1996).The
record does not show that Scolman was informed that he could only have been
sentenced on four of the eight offenses relating to death and injury.The effect of Wis. Stat. § 940.09(1m) is not a matter of common
knowledge and it is not evident that Scolman would have entered the no contest
pleas had he understood the limited nature of the plea agreement.

¶6Scolman faults his trial counsel for failing to explain Wis. Stat. § 940.09(1m).At the postconviction hearing, the burden
will be on Scolman to establish deficient performance and a reasonable
probability that he would not have entered the no contest pleas but for
counsel’s errors.See Hill v. Lockhart,
474 U.S.
52, 57 (1985).Regardless of whether
Scolman establishes ineffective assistance of counsel, he is entitled to
withdraw his plea if he can establish that the plea was not knowingly,
voluntarily and intelligently entered.SeeState v. Brown, 2006 WI 100, ¶42, 293 Wis.
2d 594, 716 N.W.2d 906.

¶7Scolman’s motion does not allege sufficient facts to
establish circuit court error for failing to determine whether Scolman
understood Wis. Stat. § 940.09(1m).The court’s obligation when accepting a no
contest plea is set out in Brown, and it does not include any
requirement to insure that a defendant is getting a good deal in the plea
agreement. Brown, 293 Wis. 2d 594, ¶¶34-35. Therefore, we reject Scolman’s argument that
the court had any obligation to explain factors that determine whether the plea
agreement constituted a good deal, and the burden of proof at the
postconviction hearing will not shift to the State to establish Scolman’s
knowledge of the law.See id.,
¶40.

¶8We also reject Scolman’s argument that the prosecutor
breached the plea agreement.[4]Scolman argues that the prosecutor breached
the plea agreement at the plea hearing before Scolman entered his no contest
pleas.The prosecutor calculated the
maximum term of imprisonment at eighty-nine years and, in an attempt to
persuade the court to accept the plea agreement, stated: “I think that certainly serves the needs of
the community.” Scolman contends that
mentioning the maximum sentence and indicating it serves the needs of the
community violates the agreement that called for the prosecutor to recommend
substantial confinement.However, the
plea agreement did not call for the prosecutor to request any specific term of
imprisonment.Even if the prosecutor’s
comments are construed as a recommendation to impose the maximum sentences,
that recommendation is consistent with the agreement that allowed the
prosecutor to recommend substantial confinement.

¶9Scolman also failed to raise adequate grounds for sentence
modification.He argues that the
sentencing court improperly considered deterrence as a sentencing objective and
that the facts fail to support the sentences totaling fifty-one years and nine
months of initial confinement.A
sentencing court has discretion determining the length of a sentence within a
statutory range.Ocanas v. State, 70 Wis. 2d 179, 185, 233
N.W.2d 457 (1975).The weight to be
accorded each of the sentencing factors is left to the sentencing court’s
discretion.Id.A sentence will be upheld unless it is so excessive as to shock
public sentiment.Id.

¶10While the sentence is lengthy, it reasonably reflects the
seriousness of the offenses, Scolman’s character and the need to protect the
public. SeeState v. Harris, 119 Wis.
2d 612, 623-24, 350 N.W.2d 633 (1984).Deterrence is a legitimate factor when considering the propriety of a
sentence.SeeState v. Gallion, 2004 WI 42, ¶40, 270 Wis.
2d 535, 678 N.W.2d 197.The consecutive
sentences imposed are not so excessive as to shock public sentiment in light of
Scolman’s irresponsible conduct leading to the deaths and injury and his
outrageous conduct after the accident.

By the Court.—Judgment and order
affirmed in part; reversed in part and cause remanded.

This
opinion will not be published.See Wis. Stat. Rule 809.23(1)(b)5.

[1] Because
we reverse and remand we ordinarily would not address the other issues.We address them to provide guidance should these
issues arise again.

[2] All
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise noted.

[3] We
broadly construe Scolman’s motion to include attachments and the brief in
support of the motion.

[4] We
reach the merits of this issue despite the fact that Scolman waived the issue
by not adequately presenting it to the circuit court.